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Texas Six-Week Abortion Law Case Gets Routed to State Top Court

Jan. 17, 2022, 11:35 PM

The Texas Supreme Court will get to decide if state professional licensing board members have the power to enforce a law that prohibits abortions after about six weeks of pregnancy.

A split Fifth Circuit panel sent the state’s top court a question that could end a federal lawsuit over the constitutionality of a ban on abortions once cardiac activity is detected.

“The unresolved questions of state law must be certified to the Texas Supreme Court and further briefing will await that court’s decision on certification,” the Monday opinion by Judge Edith H. Jones said

The U.S. Supreme Court in December greenlighted abortion providers’ suit contesting the state law, but it held that the suit could only proceed against members of the state medical, nursing, and pharmacy licensing boards.

Other state officials, including the state’s attorney general, court judges, and court clerks had sovereign immunity, the nation’s top court said.

But the Supreme Court’s decision left open the question of whether the providers had standing to sue the board members, the certification motion said.

Enforcement?

The law, S.B. 8, explicitly gives enforcement authority to private citizens and expressly says state officials can’t bring actions to enforce the law. But it also empowers the licensing boards to bring disciplinary actions against licensees accused of violating it.

Whether that means that the relief sought by the providers—an order blocking board members from enforcing S.B. 8—would have any effect is a matter that should be resolved by the state court, board members said.

Jones and Judge Stuart Kyle Duncan agreed, over the dissent of Judge Stephen A. Higginson, to send the question to the Texas Supreme Court.

Higginson argued that a case can’t be sent to a state court after the U.S. Supreme Court has ruled on it.

“As the Supreme Court explained almost 200 years ago, issues already decided by that Court cannot be relitigated in lower federal courts such as this one,” he said.

Here, the nation’s top court said the case could move forward against the board members, leaving the Fifth Circuit with no option other than to send it to the federal trial court where it originated, Higginson said.

The Texas Attorney General’s Office, Hacker Stephens LLP, and Mitchell Law PLLC represent the defendants. The Center for Reproductive Rights, Morrison & Foerster LLP, American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, Planned Parenthood Federation of America, and Lawyering Project represent the providers.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Whole Woman’s Health LLC v. Jackson, 5th Cir., No. 21-50792, 1/17/22.

—With assistance from Laurel Brubaker Calkins.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com